Citation Nr: 0110480
Decision Date: 04/10/01 Archive Date: 04/17/01
DOCKET NO. 00-05 194 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for a
right thigh donor scar.
2. Entitlement to a combined schedular rating in excess of 40
percent.
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The veteran had active service from January 1967 to November
1969. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from an April 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa.
In a November 1999 written statement, the veteran said he had
to wear a beard for 30 years to hide facial scars and he had
no nerves in his chin and lower lip. It is unclear if, by
these statements, the veteran seeks to raise a claim for
increased ratings for these service-connected disabilities
and the matter is referred to the RO for clarification and
consideration.
FINDINGS OF FACT
1. The veteran's residual right thigh donor site scar is no
more than mildly disabling and shown to be well healed,
with full range of motion and with subjective complaints
of pain.
2. The veteran's service-connected disabilities consist of
face and chin scars, evaluated as 30 percent disabling,
and a right thigh scar and incomplete paralysis of the
mental branch of the 5th cranial nerve with numbness, each
evaluated as 10 percent disabling
CONCLUSIONS OF LAW
1. The schedular criteria for a disability evaluation in
excess of 10 percent for a right thigh donor site scar
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991)
amended by the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§
4.1, 4.2, 4.7, 4.40, 4.41, 4.45, 4.59, 4.118, Diagnostic
Code 7805 (2000).
2. The criteria for a combined schedular rating in excess of
40 percent have not been met. 38 U.S.C.A. §§ 1157, 1155
(West 1991); 38 C.F.R. § 4.25 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran has requested an increased rating for his
service-connected right thigh scar and a higher combined
schedular rating. Before addressing these issues, the Board
notes that, on November 9, 2000, the President signed into
law the "Veterans Claims Assistance Act of 2000", Pub. L.
No. 106-175 (2000) (to be codified at 38 U.S.C. §§ 5100-
5103A, 5106-7) (hereinafter referred to as the "Act"), that
substantially modified the circumstances under which VA's
duty to assist claimants applies, and how that duty is to be
discharged. The new law affects claims pending on or filed
after the date of enactment (as well as certain claims that
were finally denied during the period from July 14, 1999 to
November 9, 2000). Changes potentially relevant to the
veteran's appeal include the establishment of specific
procedures for advising the claimant and his or her
representative of information required to substantiate a
claim, a broader VA obligation to obtain relevant records and
advise claimants of the status of those efforts and an
enhanced requirement to provide a VA medical examination or
obtain a medical opinion in cases where such a procedure is
necessary to make a decision on a claim.
The Act establishes very specific requirements for giving
notice to claims of required information and evidence (see
Pub. L. No. 106-475, § 3(a) (to be codified at 38 U.S.C.
§§ 5103-5103A)). After receiving an application for
benefits, VA is required to notify the claimant and the
claimant's representative of any information, and any medical
or lay evidence not already submitted, that is necessary to
substantiate the claim. VA must include in this notice an
indication of which information and evidence must be provided
by the claimant and which will be obtained by VA. If VA is
unable to obtain information, it must notify the claimant of
which records have not been secured, explain the efforts made
to obtain those records and describe any further action that
VA will take. If the records are Federal department or
agency records, VA must continue its efforts unless it is
reasonably certain that such records do not exist or that
further efforts to obtain them would be futile.
As to the veteran's claim for an increased rating for his
right thigh scar, the Board has reviewed the veteran's claim
in light of the Act, and concludes that the RO did not fully
comply with the new notification requirements at the time the
veteran's claim was filed. Specifically, the veteran was not
explicitly advised at the time the claim was received of any
additional evidence required for it to be substantiated and
the RO did not identify which evidence would be obtained by
VA and which was the claimant's responsibility. However, a
substantial body of lay and medical evidence was developed
with respect to the veteran's claim, and the RO's statement
of the case clarified what evidence would be required to
establish entitlement to a higher rating. The veteran did
not appoint a service organization to represent him in these
matters and indicated that he did not wish to testify at a
hearing. The veteran responded to the RO's communications
with additional argument, curing (or rendering harmless) the
RO's earlier omissions. See Bernard v. Brown, 4 Vet.
App. 384, 393-94 (1993); V.A.O.G.C. Prec. 16-92, para. 16 (57
Red. Reg. 49,747 (1992)) ("if the appellant has raised an
argument or asserted the applicability of a law or [Court]
analysis, it is unlikely that the appellant could be
prejudiced if the Board proceeds to decision on the matter
raised").
The Act also requires VA to provide a medical examination
when such an examination is necessary to make a decision on
the claim. See Act, Pub. L. No. 106-475, § 3(a) (to be
codified at 38 U.S.C. 5103A(d)). The VA orthopedic
compensation examination performed in April 1999, that is
described below satisfied this obligation. The Board is
satisfied that all relevant facts have been properly and
sufficiently developed, and that the veteran will not be
prejudiced by proceeding to a decision on the basis of the
evidence currently of record regarding his claim for an
increased rating for a right thigh scar and an increased
combined schedular rating.
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath
v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed
the evidence of record pertaining to the history of his
service-connected right thigh scar and has found nothing in
the historical record that would lead to a conclusion that
the current evidence of record is inadequate for rating
purposes. In addition, it is the judgment of the Board that
this case presents no evidentiary considerations that would
warrant an exposition of the remote clinical histories and
findings pertaining to the disability at issue.
When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Although a
rating specialist is directed to review the recorded history
of a disability in order to make a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55 (1994).
I. Factual Background
A February 1970 rating decision granted service connection
for disfiguring scars of the face and chin, incomplete
paralysis of the mental branch of the 5th cranial nerve with
numbness and a scar of the right thigh donor site. The RO
based its determination, in large measure, on service medical
records that showed the veteran sustained multiple wounds to
his lower face and chin area in an October 1968 land mine
explosion and required a lengthy hospitalization and bone and
skin grafts. The RO also considered findings of a January
1970 VA examination report that showed the veteran had a
topical red scar that was very, very shallow, not adherent to
the deeper structure and was 2 1/2 inches wide by 6 1/2 inches
long on the anterior aspect of the right thigh that was used
as a skin graft source for repair of the gum structures
overlying the bone graft. The RO assigned a noncompensable
disability evaluation to the veteran's service-connected
right thigh scar and his combined disability rating was 40
percent.
In March 1999, the RO received the veteran's claim for an
increased rating for his service-connected right thigh scar.
He reported hip pain and said that his hip had occasionally
gone out and required chiropractic treatment. The veteran
indicated that due to hip pain and discomfort, he was no
longer able to stand, sit, drive or walk for extended periods
of time. He said further hip deterioration would affect his
ability to maintain employment.
In a March 1999 letter, the RO requested that the veteran
submit evidence to show that his right thigh scar had
worsened. The RO advised that he could submit a doctor's
statement, diagnosis or other medical records in support of
his claim. The veteran did not respond to the RO's letter.
The veteran underwent VA orthopedic examination in April
1999. He reported right buttock discomfort for the past two
years. According to the examination report, more than thirty
years earlier the veteran's land mine injuries to the face
and jaw required donor bone to be removed from his right
iliac crest area for reconstruction of his jaw. The veteran
described three recent episodes of sudden catching and pain
in the right iliac crest area that extended into the buttocks
and caused painful transfer and some limping. The veteran
had chiropractic treatment, three to four times over a two
week period, with gradual improvement in his symptoms, had
not missed work in the factory where he was a machine
operator, with some manual labor work activity required. He
may have missed a few days with one or more of those episodes
of right iliac crest discomfort. The veteran had no history
of low back disorder, or symptoms suggestive of radiculopathy
or persistent limp. He denied pain in the groin or anterior
thigh more typical of hip disease.
On examination, the veteran transferred and moved easily and
without apparent pain. His posture and gait seemed normal
and unremarkable and he had no limp. The veteran squatted
and rose effortlessly and without pain. Right hip motion was
full and complete with extension to 10 degrees, flexion to
140 degrees, external rotaion to 45 degrees, internal
rotation to 60 degrees, adduction to 40 degrees and abduction
to 50 degrees. There was a strong hip flexion and extension,
adduction and abduction and muscle testing was normal (5/5).
No atrophy was noted in the buttock or thigh muscles.
According to the examination report, the examiner was unable
to palpate any mass in the soft tissues of the buttock. No
catching or crepitation was noted the veteran's range of
motion. X-rays of the pelvis and hip showed exuberant bone
from the right ilium extending into the buttock muscle area,
consistent with an old bone graft site. The hip joint itself
showed no evidence of arthritis or other abnormalities and
appeared normal. There may have been some mild degenerative
change in the low lumbar segments noted in the
anterior/posterior view of the pelvis. The clinical
impression was right iliac crest pain, possibly related to
mechanical events in the gluteal muscles. The VA examiner
was unable to define any hip joint disease to account for the
veteran's pain and believed it was as likely as not that the
veteran's symptoms in the right iliac area were related to
mechanical events associated with the old bone graft donor
site. It was further noted that the veteran was able to
maintain a good level of functional activity despite
occasional episodes of pain.
In April 1999, the RO awarded a 10 percent disability
evaluation for the veteran's service-connected right thigh
donor site scar. His combined disability rating remained 40
percent.
According to an October 1999 Report of Contact (VA Form 119),
the veteran telephoned the RO and complained that his
combined disability rating had not increased. In November
and December 1999 statements, the veteran reported right hip
problems that prevented him from driving, standing or
reclining for any length of time. During the course of the
last year he reported using 14 days of vacation and sick
leave due to hip pain.
II. Analysis
A. Right Thigh Donor Site Scar
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R. Part 4 (2000). The Board attempts to determine
the extent to which the veteran's service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2000). Where there
is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
While coordination of rating with impairment of function is
expected in all instances, 38 C.F.R. § 4.21 (2000),
evaluation of the same disability under various diagnoses is
a violation of the prohibition against pyramiding as set
forth in 38 C.F.R. § 4.14 (2000).
Under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2000),
superficial and tender scars that are painful on objective
demonstration warrant a 10 percent evaluation. Scars that
are superficial, poorly nourished, and have repeated
ulceration warrant a 10 percent evaluation pursuant to 38
C.F.R. § 4.118, Diagnostic Code 7803 (2000). Scars may also
be evaluated based on the limitation of function of the part
affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2000).
The RO evaluated the veteran's service-connected right thigh
scar as 10 percent disabling under Diagnostic Code 7805.
Under Diagnostic Code 5255, a 20 percent evaluation is
warranted for malunion of the femur with moderate hip
disability. 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2000).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5250 (2000),
impairment is based on ankylosis of the hip; 38 C.F.R. §
4.71a, Diagnostic Code 5251 (2000), rates impairment based on
limitation of extension of the hip; 38 C.F.R. § 4.71a,
Diagnostic Code 5252 (2000), rates impairment based on
limitation of flexion of the hip; and 38 C.F.R. § 4.71a,
Diagnostic Code 5253 (2000), rates impairment based on
limitation of abduction, adduction and rotation of the hip.
As the evidence does not demonstrate that the veteran has an
ankylosed right hip, the provisions of Diagnostic Code 5250
will not be considered.
Diagnostic Code 5251 provides a 10 percent evaluation where
extension of the thigh is limited to 5 degrees, and no other
rating beyond 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code
5251.
Diagnostic Code 5252 provides a 10 percent evaluation where
flexion is limited to 45 degrees. 38 C.F.R. § 4.71a,
Diagnostic Code 5252. A 20 percent rating is warranted where
flexion is limited to 30 degrees. Id. A 30 percent rating
is warranted where flexion is limited to 20 degrees. Id. A
40 percent evaluation is warranted where flexion is limited
to 10 degrees. Id.
Diagnostic Code 5253 provides for a 10 percent rating for
impairment of the thigh where there is limitation of rotation
manifested by an inability to toe-out more than 15 degrees.
38 C.F.R. § 4.71a, Diagnostic Code 5253. A 10 percent rating
is also warranted where there is limitation of adduction
manifested an inability to cross one's legs. Id. A 20
percent rating is warranted where there is limitation of
abduction and motion is lost beyond 10 degrees. Id.
Where functional loss is alleged due to pain on motion, the
provisions of 38 C.F.R. § 4.40 and 4.45 must also be
considered. DeLuca v. Brown, 8 Vet. App. 202, 207-208
(1995). While the provisions of 38 C.F.R. § 4.40 do not
require separate ratings based on pain, the Board is
obligated to give reasons and bases pertaining to that
regulation. Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).
Within this context, a finding of functional loss due to pain
must be supported by adequate pathology and evidenced by the
visible behavior of the claimant. Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. 38 C.F.R. § 4.40 (2000). It is essential that
the examination on which ratings are based adequately portray
the anatomical damage, and the functional loss, with respect
to all these elements. Id. The functional loss may be due
to absence of part, or all, of the necessary bones, joints
and muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it
may be due to pain, supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking
the motion. Id. Weakness is as important as limitation of
motion, and a part that becomes painful on use must be
regarded as seriously disabled. Id. A little used part of
the musculoskeletal system may be expected to show evidence
of disuse, either through atrophy, the condition of the skin,
absence of normal callosity or the like.
When evaluated in 1970 by VA, the veteran's right thigh scar
was 2 1/2 inches wide and 6 1/2 inches long and described as
very, very shallow and not adherent to the deeper structure.
When examined by VA in April 1999, the veteran did not report
any symptomatology associated with the scar, per se.
The question before the Board is whether the veteran's pain
and complaints of limited motion satisfy the criteria for an
increased evaluation under the diagnostic codes measuring hip
motion.
However, when examined by VA in April 1999, the examiner
reported that the veteran had a "full" range of motion of
the right hip, with extension to 10 degrees and flexion to
140 degrees; adduction was to 40 degrees and abduction was to
50 degrees. Normal flexion of the hip is from zero to 125
degrees; normal abduction of the hip is from zero to 45
degrees. 38 C.F.R. § 4.71, Plate II (2000). The most recent
documented range of motion of the right hip is not shown to
be compensable under any potentially applicable rating code.
See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252. Although
limitation of rotation of the thigh warrants a 10 percent
evaluation when toe-out of the affected leg cannot be
performed to more than 15 degrees, 38 C.F.R. § 4.71a,
Diagnostic Code 5253, the examiner in April 1999 found that
the veteran had 60 degrees of internal rotation and 45
degrees of external rotation. X-rays of the right hip showed
no evidence of arthritis or other abnormalities and appeared
normal. The pertinent diagnosis was right iliac crest pain,
possibly related to mechanical events in the gluteal muscles.
The VA examiner was unable to define any hip joint disease to
account for the veteran's hip pain and believed it was as
likely as not that his symptoms in the right iliac area were
related to mechanical events associated with the old bone
graft donor site. The VA doctor noted that the veteran was
able to maintain a good level of functional activity in spite
of his occasional episodes of pain.
Furthermore, as noted, the most recent x-rays showed no
evidence of arthritis or abnormality and were essentially
normal, and fracture of the right hip or malunion of the
right femur was not shown. Thus, Diagnostic Code 5255 is not
for application. Indeed, X-rays of the right hip of record
have not shown any type of dislocation or nonunion of the
right hip such as to suggest the presence of flail joint.
See 38 C.F.R. § 4.71a, Diagnostic Code 5254 (2000). There
is, in fact, no clinical condition such as to permit a
separate or higher rating for the right hip disability
currently diagnosed. It is apparent that the functional
impairment of the right hip is primarily manifested by
subjective complaints of pain but no limitation of motion.
Furthermore, in April 1999, the VA examiner noted that the
veteran denied groin or anterior thigh pain more typical of
hip disease, that the veteran's gait and posture seemed
normal and unremarkable with no limp and he was able to squat
and rise effortlessly and without pain. There was normal
muscle strength and no atrophy and no catching or crepitation
was found with range of motion. In the absence of more
disabling manifestations, specifically attributable to
specific right hip disability, there is no basis for an
increased rating under the rating criteria currently in
effect. The veteran's complaints of pain are contemplated in
the rating now assigned and a rating in excess of the
currently assigned 10 percent is not warranted. 38 U.S.C.A.
§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 7805.
Moreover, the evidence is not so evenly balanced as to allow
for the application of reasonable doubt. 38 U.S.C.A. §
5107(b).
B. Combined Schedular Rating in Excess of 40 Percent
The veteran has also voiced concern regarding his combined
schedular rating that remained at 40 percent, even after he
was awarded a 10 percent rating for the service-connected
right thigh scar.
In written statements in support of his claim, he noted that
he had three rated disabilities that were rated 30, 10 and 10
percent disabling, for face and chin scars, cranial nerve
numbness and right thigh scar, respectively; he questioned
why he was receiving benefits at a combined 40 percent level,
rather than at a higher, e.g., 50 percent level.
The veteran's service-connected disorders, including the
separate evaluations for his face and chin scars, right thigh
scar and cranial nerve disability, are evaluated under the
Combined Ratings Table set forth at 38 C.F.R. § 4.25. See 38
U.S.C.A. §§ 1155 and 1157 (West 1991). Combined ratings
result from the consideration of the efficiency of the
individual as affected first by the most disabling condition,
then by the less disabling condition, then by other less
disabling conditions, if any, in the order of severity. 38
C.F.R. § 4.25.
The combined value of the service-connected disabilities is
then converted to the nearest number divisible by 10, and
combined values ending in 5 are adjusted upward. If there
are more than two disabilities, the disabilities will be
arranged in the exact order of their severity, and the
combined value for the first two will be found as for two
disabilities. The combined value will be combined with the
degree of the third disability (in order of severity), and so
on. 38 C.F.R. § 4.25(a).
The Board notes that ratings are combined, rather than added.
As discussed in 38 C.F.R. § 4.25, the efficiency of the
individual is considered as affected by each condition, the
most disabling being considered first. Thus, a person with a
60 percent rating remains 40 percent efficient. The effect
of a further 30 percent disability would leave only 70
percent of the efficiency remaining after consideration of
the first disability (40 percent). 30 percent of 40 percent
would be 12 percent, thus there would be 28 percent
efficiency remaining, making the combined rating 72 percent,
not 100 percent. Applying these rules to the veteran's case,
his 30 percent rating combined with the 10 percent rating
results in a 37 percent rating, and 10 percent combined with
that would be 43 percent. The nearest number divisible by
ten is 40 percent. A higher combined schedular rating is
simply not permissible under the mechanical application of
the regulations currently in effect. 38 U.S.C.A. §§ 1155,
1157; 38 C.F.R. § 4.25.
ORDER
An increased rating is denied for right thigh donor site
scar.
A combined schedular rating, in excess of 40 percent, is
denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals